New UK Surrogacy Ruling: Much To Consider When Things Go Wrong

Here’s a fairly recent opinion from the UK involving surrogacy. If you’d rather not read the actual opinion, there’s a bit of press coverage, but I think the opinion itself is really worth a look. (To give credit where credit is due, I found this case via The Spin Doctor. I don’t entirely agree with the analysis of the case that’s posted there, but that’s a different matter.)

I sometimes think that surrogacy is the most controversial of the ART practices. It’s a topic that I’ve written about fairly frequently (you can find most of the posts under the tag “surrogacy“), sometimes at length. Perhaps because it is controversial, stark differences in practices permitted/available in different countries, which means every case must be considered carefully in its own context.

There are a couple of key points about surrogacy in the UK (which has actually been discussed here before.) As the opinion makes clear, in the UK, no money or other benefit may be paid to the surrogate. (Expenses reasonably incurred are permitted, and perhaps that’s a topic for another time.) Further, negotiating a surrogacy agreement on a commercial basis is criminal. There are agencies that facilitate introductions between potential surrogates and people who wish to use surrogates, but as I understand it, they cannot be for profit enterprises. Indeed, they are obliged to make sure that the transactions are not commercial.

This in itself is interesting. We tend to think in terms of commercial for-profit surrogacy agencies, which abound in the US (where permitted). I’m not sure there are not-for-profit surrogacy centers here. (If you want to see what a UK site looks like, here’s one.)

Crucially these UK centers provide advice and counselling. That’s crucial because, as I’ve noted in the past, careful counselling and relationship management seems to be the single most important determinant of successful surrogacy. (I define “successful surrogacy” as that which ends with everyone contented.)

There’s one other feature of UK law that must be noted at the outset: The woman who gives birth is the legal mother of the child. I don’ t think that is made clear in either the opinion (which assumes it as a given) or the press coverage.

Further, the woman who gives birth is the mother whether the woman is genetically related to the child or not. One thing that means is that the distinction between “traditional surrogacy” and “gestational surrogacy” is legally irrelevant in the UK. This, too, is something discussed previously here. Consistent with my general view that DNA is not the defining factor of parenthood, I’m inclined to agree with the uniform treatment accorded surrogates under UK law.

Now, back to the case in hand. I think the court’s opinion sets out the heart of the problem effectively just at the beginning of the opinion. Despite the regulation of surrogacy in the UK and the existence of those non-commercial surrogacy centers

the advent of the internet has facilitated the making of informal surrogacy arrangements between adults. In such cases, those entering the arrangement do not have the advantage of the advice, counselling and support that the established agencies provide.

On one level, that pretty much tells you all you need to know about this case. This is one of those informal surrogacy arrangements and anyone looking at it from the outside could probably see a dozen reasons it was likely to end badly. (The facts really are worth reading.)

Here’s one particular observation that seems to me important. This is a case that was going to end badly no matter what the law on legal parentage was. What I mean is that it wouldn’t fix the problems here (in my view) if the law recognized Mrs. W as a parent instead of the woman identified as “the mother” in the opinion. That’s because what makes this a bad case (in my view) is the dysfunctional relationship between the people involved and the degree to which the parties seemed not to fully understand the nature of the undertaking on which the embarked.

Thus one thing I take from the case is the importance of screening and counselling. One of the things that worries me about the globalization of surrogacy is the potential that this race to the bottom means less and less counselling/screening gets conducted. Additionally, the fixation on genetics leads people to conclude the problem with a case like this is that it is traditional and not gestational surrogacy. (I think that’s the implication of the post on Spin Doctor, which is why I think I might disagree with it.) I worry that this obscures what we really need to focus on.

I think I’ll stop here for today, but with this conclusion. In the end, I remain convinced that the relationship between a woman who is a surrogate and the individual or couple she works with is a complicated one. Irreconcilable conflict is problematic no matter who wins. The way forward must be to structure those relationships to maximize the likelihood we don’t end up there.

This case is – perhaps remarkably – the first reported case of its kind in the UK. UK law has always been set up on the basis that a surrogate is the legal mother at birth and that no surrogacy arrangement is enforceable, which leads many intended parents to nervousness about a surrogate’s ‘absolute right to keep the baby’ if she changes her mind. However, in practice, the law is a lot more complicated and where problems arise the courts have very flexible powers to enforce whatever they consider to be in the best interests of the child. As this case mentions, there was a previous case in 2007 where the intended parents were given residence of the child (despite the fact that the surrogate was the biological mother, and that she was married, which under UK law makes her and her husband the legal parents to the exlcusion of the intended parents). These are the only two reported cases to deal with UK surrogacy arrangements gone wrong, and we now have both sides of the coin in terms of outcome.

These cases always make me incredibly sad, not just because they are painful stories in themselves, but because they help to fuel fears and negativity about surrogacy generally (not to mention media hype) which is just not reflective of the overwhelming majority of arrangements which are entered into responsibly and which are entirely successful. Attitudes to surrogacy in the UK (at least among the mainstream where familiarity is low) remain nervous, and cases like this don’t help.

Thanks for adding all that information. (It’s always good to have actual knowledge.) It’s interesting how much of the policy debate is shaped around anxiety about what might happen. As your post reminds me, what really does happen in a typical case can be quite different.

As I look at the outcome here, it seems to me it is a akin to a resolution based on the best interests of the child. That’s the test we would use here in the states if we understood the case to be a custody dispute between legal parents, which is actually what this looks like. Is there any doubt but that Mr. W is the legal father of the child and therefore is entitled to some contact it her?

And can you point me towards that 2007 opinion. Sounds like if I read that I’ll have read all the relevant case law. (I don’t mean to suggest that gives me full understanding of how surrogacy works in the UK, only to emphasize your point about how limited the legal actions have been.)

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.